13 July 2012

Past posts in this blog have noted works such as The Professional Guinea Pig: Big Pharma and the Risky World of Human Subjects (Durham: Duke University Press 2010), History and theory of human experimentation: the Declaration of Helsinki and modern medical ethics (Stuttgart: Franz Steiner 2007) by Ulf Schmidt & Andreas Frewer, When Experiments Travel: Clinical Trials and the Global Search for Human Subjects (Princeton: Princeton University Press 2009) by Adriana Petryna.

It is interesting to see the short and robustly contrarian 'The Subject–Researcher Relationship: In Defense of Contracting Around Default Rules' by Michelle Meyer in 11(4) American Journal of Bioethics (2011) 27-30.

Meyer states that as "part of a broader project of rethinking the way we govern human subjects research" -

I consider a proposal to improve the quantity, quality and speed of research by requiring subjects to contractually agree not to withdraw from research, at least without good reason. That proposal would require altering the current regulations governing human subjects research, which provide subjects with an inalienable right to withdraw from the research at any time, for any reason, without penalty or loss of benefit to which they would otherwise be entitled.

I argue that the gains sought by this particular proposal would likely be swamped by the costs of enforcing such contracts and by the chilling effect they would have on subject recruitment. But I agree that we should explore the role of contract in rethinking the way we govern human subjects research. Doing that in any significant way, however, requires an understanding of the subject-researcher relationship that is not fiduciary. In this article, I defend the claim that this relationship is in fact not fiduciary, cannot coherently be made fiduciary, and ought not to be fiduciary. I then defend the role of contract not only in the efficient conduct of research, but also, and more importantly, in serving the interests and welfare of research subjects.

She asks how can contract benefit subjects?

First, subjects can use and have used contract to secure benefits that they are not owed under the applicable default rules. Too often it is assumed that contracting around default rules entails contracting down from them. Contract can be a way for those whom the law regards as legal strangers, such as same-sex partners, to establish legal commitments to one another. Even where the law already recognizes a relationship as imposing rights and obligations, contract can be used as easily to heighten as to lower those duties of care. For example, the current default rule is that researchers have no duty to provide subjects with post-trial access to a beneficial trial intervention (Kraemer-Katz v. U.S. Public Health Service). Subjects have been able to secure that benefit only through contract (Dahl v. HEM Pharmaceuticals Corp.; Abney v. Amgen, Inc.). Similarly, the general default rule is that tissue contributors have no property interests in the tissue they contribute to research. But through contract, tissue contributors have conditioned their gifts in a variety of ways, such as by requiring data to be shared with other researchers or negotiating intellectual property arrangements that would ensure the accessibility of any resulting diagnostics or treatments to patients (Skloot 2006). Similar gaps between what the regulations require and what bioethicists believe subjects are owed — such as compensation for research-related injuries and receipt of individual research results — could be bridged through contract.

Second, and less obviously, subjects sometimes have an interest in waiving their legal rights — that is, in choosing not to be protected — in order to secure benefits or outcomes that they value more highly. Unless subjects are permitted to make binding promises to researchers, the promises that researchers make to them will remain largely empty. Under classical contract doctrine, a researcher’s promise to pay (or otherwise compensate) a subject in exchange for the subject completing the study—the unilateral contract that De Ville (2011) wants to preserve — does not become a contract binding on either party until the moment the subject accepts the researcher’s offer by completing the study. Until then, the researcher may revoke his or her offer (as often occurs when a trial is halted; Abney v. Amgen, Inc.) without penalty, and the subject, who may have completed 99% of the study, will be entitled neither to the promised benefits nor to recoup any out-of-pocket costs. Given the unfairness that can result from unilateral contracts, courts have found various ways to enforce the offeror’s promise over his or her attempts at revocation, at least where the offeree has initiated performance. For present purposes, the point is that it is the subject’s inability to bind him- or herself that permits this unfairness, and the subject’s ability to “lock in” the offered benefit at enrollment by making a binding promise to complete the study that would prevent it.

Similarly, the federal regulations not only permit a subject to withdraw at any time, but also permit a researcher to terminate a subject’s participation without his or her consent (45 CFR §46.116(b)(2); Kraemer-Katz v. U.S. Public Health Service). Yet while the researcher may alienate that right by making a binding promise to the subject not to terminate the subject’s participation for trivial reasons, the regulations prohibit subjects from including that offer by reciprocating with a binding promise not to withdraw for trivial reasons. Although the inalienable right to withdraw undoubtedly protects subjects in some ways, it also deprives them of something of value that they might willingly exchange for something they regard as more valuable.

Those queasy about allowing subjects to waive their legal rights should recall that the very institutions of medicine and clinical research could not exist without permitting patients and subjects to waive their legal rights. Informed consent transforms what would otherwise be battery into treatment or volunteerism, respectively. The real question, then, is not whether to allow subjects to waive their legal rights, but which rights they ought to be permitted to waive, and who decides.

From the judgment in United States of America v. Guillermo Novo Sampol636 F.2nd 621 (back-story here) -

I want you to listen very carefully to what I have to say.

In the first place, I think it necessary for me to tell you who the judge is who is to sentence you. And why? Because I want to point out to you that I have been around, and I want to point out to you that I am not falling for anything; that whatever I do I am going to do in such a way that if you in any way disappoint me, I will put the clutch on you so that no matter what you do you won't be able to extricate yourself from the judge's sentence.

I know it sounds threatening, but I have got to talk plain. (Sentencing TR. 9)

Your lawyers have done one whale of a job for you, Mister. They believe in you. I don't. That is putting it on the line. I'm not sure of you; they are.

Why do I bother with you altogether, then? Why don't I just throw the book at you and say you did a dirty, slimy, almost inhuman bit of deportment, you should pay, and I wish the law would enable me to multiply it by ten? Why do I bother with you altogether since I suspect you?

For the simple reason that there has been called to my attention by your lawyers and by the Government, in all fairness, that you have been cooperating. Does that mean that I am convinced that you have told everything you know? Not by a hell of a long way. No, sir. You haven't convinced me of that. I don't know whether you are peddling some of this a bit at a time. (TR. 10-11)

See, I have had people like you. Some of them were my witnesses before I became a judge. I have seen some of the worst rogues rise to the top, and I have seen some of the worst rogues go down the gutter. What they do by way of saying they will cooperate is to dole it out like with a medicine dropper.

I think I was able to tell which ones were really opening up and which ones were really playing a game of cat-and-mouse.

I have a feeling that you are in the middle ground, that you are giving some material, and I think some valuable material, but I think you can go much further.

Do I think Kaminsky would not succumb to the temptation of going back to the same kind of maneuvering that he engaged in? I'd like to think not, but I may say candidly that when you are in a corner I think you may very well pull off the old kind of stuff. (TR. 11)

I come back to the only thing that makes me talk to you, spend my energy, exercise a sore throat.

Why do I do it? I say I do it only because I believe you can be cooperative with the authorities to the end that the community will be benefited by the help that you are in a position to give. (TR. 12, 13)

A perspective on judicial emo is provided in Disqualification For Bias (Leichhardt: Federation Press 2012) by John Tarrant.

12 July 2012

Currently writing about the Parliamentary Joint Committee on Intelligence & Security inquiry into 'potential reform of national security legislation', ie stronger powers for the Australian Security Intelligence Organisation regarding telecommunications surveillance.

The Government has announced that the Committee has been asked to consider

a package of national security ideas comprising proposals for telecommunications interception reform, telecommunications sector security reform and Australian intelligence community legislation reform. The Inquiry will include examination of:

Lawful access to telecommunications, to ensure that investigative tools are not lost as telecommunications providers change their business practices and begin to delete data more regularly.

Safeguards and privacy protections, including clarifying the roles of the Commonwealth and state ombudsmen in overseeing telecommunications interception by law enforcement agencies.

An authorised intelligence operations scheme, to afford ASIO officers the same protections which currently apply to officers of the Australian Federal Police for authorised operations.

Among a range of other matters, the Committee will consult on measures to address security risks posed to the telecommunications sector, and whether the Government needs to institute obligations on the Australian telecommunications industry to protect their networks from unauthorised interference.

The 61 page discussion paper [PDF] accompanying the terms of reference for the inquiry - initiated by Attorney-General Roxon - is disappointingly but unsurprisingly bland, festooned (or festered) with passages such as

As Australia advances, so too do threats to our wellbeing. Meeting the challenges of new technologies and methodologies is a key priority for the Australian Government in the national security sphere. Our law enforcement and security capabilities must keep ahead of terrorists, agents of espionage and organised criminals who threaten our national security and the safety of our citizens. So our law enforcement and intelligence agencies must be equipped with contemporary skills and technologies, and backed by necessary powers – coupled with the appropriate checks and balances and oversight mechanisms society rightly demands.

Very "Yes, Prime Minister" in relation to proposals that were traversed in 2010 in my submissions and articles regarding Australian implementation of the Council of Europe Cybercrime Convention.

It is unclear what - if anything - telecommunications (or the Australian Security Intelligence Organisation) has to do with the impressive statistics about assaults and homicides on page 16 of the discussion paper. Most of the deaths involved kitchen knives, fists, frying pans, broken bottles and other implements ... as far as I'm aware no-one in the past three years has been clubbed to death with a mobile phone. The nature of those crimes means that enhanced powers for the Australian Federal Police and ASIO would be irrelevant; we might hope that the PJCIS and readers of the paper look beyond information that simply does not justify the legislative proposals.

A case can be made that law enforcement personnel need new tools and new powers. Regrettably the discussion paper does not make that case; it is simply disingenuous and reflects badly on the Minister.

I am reminded of the Law Institute of Victoria submission of several years ago, which stated that -

The large-scale collection of information by governments because it may be helpful to some government functions, rather than because it is necessary, constitutes a serious threat to online privacy. The power of the internet should not be used by governments to achieve measures of control that would not be possible without the internet. By way of illustration, the LIV suggests that neither government nor community would tolerate proposals to place telephone intercepts on all phone lines in Australia and record all conversations, or to open all mail, in case such information may be of use to law enforcement agencies. Such proposals would be unacceptable in a democratic society. There is no
demonstrable reason why internet communications should be treated differently to other communications.

Submissions are due on 6 August; the urgency justifying that perfunctory consultation is unclear.

11 July 2012

Under the heading "NZ immigration staff have 'fun' with data" AdelaideNow reports that Immigration New Zealand officers "have been caught out using a confidential client database for their own amusement".

Seven complaints involving nine staff for accessing client records without authorisation during the past year have been substantiated, with a former former Immigration New Zealand officer informing the New Zealand Herald that

staff sometimes logged in to look at information on wealthy and interesting clients "for fun".
"We would joke about which client would make a good boyfriend, and recommend in jest the rich ones to our single colleagues," she said.
"It's similar to how people would look and laugh at people and the information they put on dating websites."

One officer has resigned, four have received final warnings and another is facing disciplinary action.

The Otago Daily Times in reporting on the action states that -

It was also "common" for immigration staff who had access to client files to call colleagues over to their computer screens when they found interesting information or photographs on applications.

In April, a Department of Labour internal audit investigator found one officer had accessed client details on three occasions and information was passed to other parties.

But no action was taken against the woman, as she was no longer working with the agency.

"The complaint was substantiated as a breach of our code of conduct and disciplinary action would have been recommended had (the woman) still been employed by the department," the investigator told the complainant.

Arguably penalties for misebehaviour should extend beyond internal sanctions, ie offenders should not be able to escape by simply resigning from a government agency.

In the UK the Information Commissioner has announced a £150,000 civil monetary penalty (CMP) on consumer lender Welcome Financial Services Limited (WFSL) in relation to the loss of records featuring over half a million customers’ details.

WFSL’s Shopacheck business lost two back up tapes containing names, addresses and telephone numbers of customers in November 2011. Those tapes have not been recovered. There is no indication of whether the data was encrypted.

The Commissioner commented that "It’s a case of ‘wake up and smell the CMP", noting that

Over the past year the ICO has bared its teeth and has taken effective action to punish organisations many of which have shown a cavalier attitude to looking after people’s personal information.

This year we have seen some truly shocking examples, with sensitive personal information, including health records and court documents, being lost or misplaced, causing considerable distress to those concerned. This is not acceptable and today’s penalty shows just how much information can be lost if organisations don’t keep people’s details secure.

We hope these penalties send a clear message to both the public and private sectors that they cannot afford to fail when it comes to handling people’s data correctly.

The background to the claim, in what I hope is uncontroversial language, is as follows. Mr Soloman is a hip hop artist who performs rap music and is well-known in the field. His stage name is "Dappa Dred". He has already produced tracks which have been put on the internet one of which was officially viewed by some 35,000 people. He may have uploaded as many as 30 tracks onto the internet. He has been interviewed in specialist magazines, and is well regarded. However, he does not have the cash available to fund the promotion and marketing of his work.

In 2009 Mr Soloman contacted BFS, who as their name suggests, make films. Mr Soloman asked BFS to make a video for him. The video was to be a digital video recording added to a sound recording of a track that Mr Soloman had made. Mr Soloman was also to appear in the video. Mr Soloman would not pay anything up front. BFS' reward would come in a profit share from future sales of the video to the public. BFS shot a video which featured Mr Soloman among the performers. On about 21 November 2009 BFS uploaded the video onto You Tube and sent Mr Soloman a link so that he could view it. However, the link did not work; and so BFS took down the video and uploaded it again with a new link. Mr Soloman viewed the video. He did not like what he saw. He also complained that BFS had uploaded the video to You Tube without his consent, thereby infringing both his copyright and his performance right and also infringing his moral right not to have his work subjected to degrading treatment. BFS responded by removing the video from You Tube on 26 November 2009. By 30 November BFS had deleted all copies of the video on their system. The video had remained on You Tube for some 5 days. BFS claim that the video was in fact uploaded to You Tube with Mr Soloman's consent; but Mr Soloman disputes that. For the purposes of this appeal I will assume that Mr Soloman is right about that issue.

Mr Soloman began proceedings in the High Court in Bristol on 3 February 2010. His claim form put the value of his claim at £800,000. The causes of action relied on in his statement of case (which he drafted himself) were breach of statutory duty, infringement of copyright and what he called loss of a chance.

The nub of the complaint about infringement of copyright and performance right was the presence of the video on You Tube for five days. The nub of the complaint about loss of chance was that the video had damaged the marketing potential of the work, and had, in some way, prevented him from making and selling more records and LPs.

In considering Soloman's appeal Lewison LJ notes that -

The judge then turned to consider the question of damages. He considered the evidence about what had happened during the short period that the video had been viewable on You Tube. There was evidence before him that showed that during the period that the video had been posted on You Tube it had been viewed nearly 100 times. That is not to say that it had been viewed by 100 different people, because You Tube only records "hits" which may be multiple hits by the same person. But the judge concluded that apart from BFS' own personnel a maximum of some 50 people had seen the video. He assumed, in Mr Soloman's favour, that the video in its unfinished state was "derogatory" treatment within the meaning of the CPDA. He reasoned as follows. There were three possible consequences of 50 persons having seen the video. First, having seen its poor quality, they would decide not to buy the record when it eventually came out. On the basis of figures given to him by Mr Soloman the judge decided that Mr Soloman stood to make a maximum of £1.20 for each record sold. The judge was prepared to assume in Mr Soloman's favour that of the 50 people who saw the video, 40 would have bought the record once it had been released but for the poor quality of the video. This would produce for him a recovery of approximately £50. Second it was possible that those 40 people would themselves disparage or bad mouth the video. The judge was not prepared to make that assumption in Mr Soloman's favour since there was no evidence that anyone had done that. Nor is there now. Third, the 50 people might have liked the video so much that they bootlegged it. Again the judge was not prepared to make this assumption in Mr Soloman's favour in the absence of any evidence that this had in fact happened. Again there is no evidence now of any bootlegging. I might also add that there would in any event be a considerable overlap between this way of putting the claim and the first way, because the lost sales attributable to bootlegging would have been to some extent the mirror image of the lost sales due to people not buying the record at all.

The judge also said that he was not satisfied that Mr Soloman had put forward any real claim to loss of market potential.

We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” in daily life because they are deemed to be “not worthy of equal citizenship”. Third, this harm to “the dignitary order of society” is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech.

I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?

Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion ... in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.

Leiter concludes with a discussion of "the heart of the matter", ie doubts about whether government should be thought competent or trustworthy to decide which speech is harmful to the vulnerable and which not.

He comments that such doubts are

a familiar theme in the American constitutional literature, central, for example, to Frederick Schauer’s seminal discussion thirty years ago in Free Speech: A Philosophical Enquiry:

Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.

We need not sign on to the more generalized paranoia about government power expressed at the end of Schauer’s statement in order to still agree that government seems to be a problematic arbiter of truth and falsity, or harm and lack of harm, since it, too often, has dubious competence and often dubious motives for its decisions in these domains. In the case of “hate speech,” speech that harms the “dignitary order of society,” Waldron is unimpressed by this worry, however. He asks why the prohibition of group defamation should be “an area where we should be particularly mistrustful of our lawmakers” (202)? After all, this is “a legislative majority bending over backwards to ensure that vulnerable minorities are protected against hatred and discrimination that might otherwise be endemic in society” (202). So “hate speech laws do not involve putting the interests of the majority above those of vulnerable groups” (203).

Waldron’s characterization of the content of hate speech legislation in jurisdictions outside the United States is fair, and perhaps that is because democratic processes there are more robust than in the United States. But surely one could imagine that were the United States to go the route proposed by Waldron that Evangelical Christians would soon present themselves as a “vulnerable” group, oppressed by a secular society, and demand appropriate regulations governing how the secular elites speak about them. Richard Dawkins (maybe even Brian Leiter?) better watch out how they speak about religious belief once the religious secure their Waldron-sanctioned protections!

At first blush, such concerns might seem silly. Evangelical Christians, with significant control over one of the main political parties in the United States and facing no threat of serious state persecution, are obviously in a very different position than the minority of American Muslims, who are spied on by the police agencies and regularly tarred as terrorists and dangers to the body politic in national media, especially, but not only, on-line. Yet that is precisely the reason to worry, says the critic of Waldron’s view: precisely because Evangelical Christians do have access to political power, they are in a position to get their self-representation as “vulnerable”, as implausible as it may seem, recognized by the law. What if other pseudo-vulnerable groups follow suit?

This kind of worry cuts in another direction too. A critic might also object that the elderly are not a “vulnerable” group in the U.S., represented, as they are, by an allegedly powerful lobbying organization, the American Association of Retired Persons (“AARP”). The supposed power of the AARP is perhaps belied, of course, by the political viability of the Ryan case, but we may put that to one side, since the case also illustrates an ambiguity in the notion of “vulnerability.” The elderly dependent on Medicare are vulnerable in the sense of being almost wholly dependent on a particular government benefit for their well-being and existence. Perhaps they are not quite as vulnerable in the sense of having no voice in the political process - though, of course, that remains to be seen. Although Waldron is not clear on this point, I take it he means vulnerability in something closer to the first sense, that is, people who can be harmed unless government acts. In that case, the elderly dependent on Medicare are not that different from the vulnerable minorities on whom Waldron focuses.

Late in the book, Waldron affirms that “everything must be open to debate and challenge in a free and democratic society, no matter how important the objects of challenge seem to be to the culture and identify of our community” (198), which would seem to provide secure protection for the Ryan case. But it is not at all clear how that resounding affirmation of “open debate” can be squared with the idea that harm to vulnerable people is morally important, and that no one may impugn the “dignitary order of society.” Is this entire exercise just Miss Manners writ large in the language of political philosophy? One might think so when Waldron admonishes that “forceful disagreement, when it is expressed, should be expressed in terms that can be engaged with intellectually, which is the only means by which belief might possibly be affected” (230; cf. 229). Yet it is absurd on its face to suggest that “belief” is only affected by “intellectual” forms of expression, and, of course, Waldron cites no evidence to the contrary (there is none as far as I know) and his own discussion of the reasons for being apprehensive about “hate speech” suggests he does not really believe it. But even putting that empirical flight-of-fancy to one side, it is hard to see how this admonition to nice intellectual manners is consistent with his earlier claim that it is fine to “ridicule” (Waldron’s word) the Tea Party folks as having “preoposterous” views. At points like this, the lack of a systematic theoretical framework for the argument becomes particularly apparent.
Almost a half-century ago, the Marxist philosopher Herbert Marcuse expressed the view in his famous essay on “Repressive Tolerance” that,

[T]olerance cannot be indiscriminate and equal with respect to the contents of expression, neither in word nor in deed; it cannot protect false words and wrong deeds which demonstrate that they contradict and counteract the possibilities of liberation. Such indiscriminate tolerance is justified in harmless debates, in conversation, in academic discussion; it is indispensable in the scientific enterprise, in private religion. But society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake: here, certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behavior cannot be permitted without making tolerance an instrument of the continuation of servitude.

Waldron’s book is significant, in part, because he is an influential theorist, well within the rather staid mainstream of the liberal capitalist “West,” endorsing the regulation of speech based on its content, in particular, based on the harm that content does to vulnerable people. But once that Pandora’s Box is opened - it has to be given the reality that speech causes all kinds of harms to vulnerable populations - we end up having to ask why Marcuse was wrong? In that regard, Waldron’s book may prove a watershed in Western theorizing about freedom of speech, less because of its dialectical ingenuity or theoretical innovations, and more because it legitimizes Marcuse’s question in a way that has been unfamiliar in Anglophone debates for two generations.

10 July 2012

What to do about whistleblowing and about people such as Jean-Philippe Wispelaere in the 'age of WikiLeaks' (or WikiMyths) and anxieties about cyberwar and government accountability?

'Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protection for Leakers of Classified Information' by Heidi Kitrosser in (2012) 6(2) Journal of National Security Law & Policynotes that

The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or assume that leakers can be prosecuted with little or no constitutional difficulty, given their special positions of trust with respect to classified information.

This Article challenges that conventional view. It argues that government insiders who leak classified information merit robust, albeit certainly not unlimited, constitutional protections from prosecution. It also explains that the government should have greater constitutional leeway to punish leakers through administrative sanctions tied to leakers’ insider status – for example, through dismissal from employment or security clearance removal – than through criminal penalties. The Article defends these points on grounds of constitutional text, structure, and principle in their own right and as applied to the realities of the classification system. It also analyzes judicial doctrine, explaining that while aspects of it bode poorly for leaker protections from prosecution, the overall doctrinal picture is far less bleak for leakers than is often assumed.

There is an upbeat view in 'Protecting Rights from Within? Inspectors General and National Security Oversight' by Shirin Sinnar in Stanford Law Review which comments

Courts and Congress are often reluctant to constrain the executive branch when it limits individual rights in the pursuit of national security. Many scholars have argued that mechanisms within the executive branch can supply an alternative constraint on executive power – whether as a preferred alternative due to the comparative advantages of such institutions or as a second-best option necessitated by congressional and judicial abdication. Despite this interest in the “internal separation of powers,” there is very little attention to what such internal mechanisms are actually doing to protect individual rights.

Sinnar argues that

Inspectors General (IGs), little noticed oversight institutions in federal agencies, are now playing a significant role in monitoring national security practices curtailing individual rights. IGs have investigated the post-9/11 detentions of immigrants, the use of National Security Letters to obtain personal records, coercive interrogations of terrorist suspects, extraordinary rendition, military monitoring of political protests, and many other controversial counterterrorism practices.

Analyzing five reviews at the Departments of Justice, Homeland Security, and Defense, and the Central Intelligence Agency, I argue that these investigations varied significantly in independence and rigor. At their strongest, IG reviews provided remarkable transparency on national security practices, identified violations of the law that had escaped judicial review, and even challenged government conduct where existing law was ambiguous or undeveloped. Such reviews protected rights where courts had failed and significantly reinforced other forms of oversight. At the same time, even stronger reviews largely did not result in remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion.&

These case studies illuminate the potential strengths and limitations of IG rights oversight: IGs are well-suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they may avoid constitutional questions, and they rely on political actors to implement reforms. IGs can help protect individual rights against national security abuses and should be modestly strengthened, but do not displace the need for robust external oversight of the national security executive.

Obama's performance is critiqued in the 86 page 'Whistleblowers and the Obama Presidency: The National Security Dilemma' by Richard Moberly in (2012) 16 Employee Rights and Employment Policy Journal, which comments -

As a candidate for President, Barack Obama promised to protect whistleblowers because they are, in his words, “watchdogs of wrongdoing and partners in performance.” Three years into his Presidency, Obama’s record often demonstrates strong support for employees who disclose government misconduct. He appointed whistleblower-rights supporters to key administrative posts and fought to include robust whistleblower protections in his key legislative accomplishments, such as the economic stimulus package, health care reform and the financial reform bill.

However, the Obama Administration’s treatment of national security whistleblowers has been decidedly less emphatic and more nuanced. His Administration aggressively prosecuted unauthorized disclosures related to national security and objected to reporters claiming a privilege not to reveal their sources. Moreover, a substantial legislative reform of federal employee whistleblower protections remained in limbo for much of Obama’s Presidency in part because of his Administration’s concern that the proposed law would provide too many rights to national security whistleblowers.

This Article examines and critiques this apparent contradiction in President Obama’s whistleblower agenda and also explores ways in which the Obama Administration might satisfy its national security policy objectives without undermining whistleblower protection.

Perspectives on Wispelaere, secrecy and whistleblowing are provided in Rod Tiffen's 'Why Political Plumbers Fail – Hypocrisy and Hyperbole in Leak Control' [PDF], Andrew Wilkie's self-regarding Axis of Deceit: The Extraordinary Story of an Australian Whistleblower (Black Inc., 2004) and the 2010 Australian Law Reform Commission report on Secrecy Laws and Open Government in Australia (ALRC Report 112).

09 July 2012

The ACT Law Reform Advisory Council (the Territory's counterpart of the ALRC and NSWLRC) has released its Beyond The Binary: legal recognition of sex and gender diversity in the ACT gender diversity report [PDF].

The Council had been asked to advise on the legal recognition of transgender and intersex people in the ACT, specifically -

to inquire into and report on steps necessary to provide for legal recognition of transgender and intersex people in the Territory, and to ensure that any such provision is compliant with the Human Rights Act 2004, with particular regard to:

a. the existing provisions of the Births, Deaths and Marriages Registration Act 1997

b. the potential implications of legal recognition of transgender and intersex people in the Territory for public functions or documentation under Territory and Commonwealth law, and

c. the potential implications of legal recognition of transgender and intersex people in the Territory for mutual recognition of a persons’ sex by and among the States, Territories, and Commonwealth.

It features some 35 recommendations ...

In ACT legislation generally:

1. reference should consistently be made to ‘sex and gender diversity’, ‘sex and gender diverse people’, and ‘people in sex and gender diverse communities’.

2. when necessary, specific reference should be made to ‘transgender’, a ‘transgender person’, and ‘transgender people’ to refer to people who, having been born as physiologically either male or female, have changed or are changing their identity from one sex and gender to another.

3. when necessary, specific reference should be made to ‘intersex’, an ‘intersex person’, and ‘intersex people’ to refer to people who, because of their physiological characteristics at birth, do not identify only as female or only as male. The term intersex should not be used to refer to or include people who have changed or are changing their identity from one sex and gender to another.

4. it is not necessary or appropriate to define ‘female’ or ‘male’. Those terms do have an ordinary binary meaning and legislation is not necessary to confirm that. It is, however, appropriate to define terms of sex and gender diversity that are outside these binary terms, so that diverse sex and gender identity is given recognition as a part of a process of its being normalised.

5. the 2003 ACT Report audit of ACT laws which require a person to identify their sex and gender should be updated and extended to laws and practices, and that the need for those requirements should be reviewed with the intention of removing whenever possible a requirement that a person identify their sex and gender.

In the Legislation Act 2001:

6. the definition of ‘transgender’ is appropriate and sufficient.

7. in the definition of ‘intersex’, reference to a ‘a genetic condition’ as the reason for a person’s intersex status is inappropriate, and it is sufficient to refer to the fact that an intersex person’s reproductive organs or sex chromosomes that are not exclusively male or female.

8. the sex of a child born in the ACT should continue to be recorded by the Registrar-General, subject to recommendations for changes to the timing for notification and registration, and to the available categories of sex.

9. to give legal recognition to sex and gender diverse people who are not defined by the female/male binary, wherever the BDMR Act and BDMR Regulation refer to two sexes, male and female, they should be amended to recognise three sex and gender identities: female, male and intersex.

10. having regard to 1-3 above, the BDMR Act should be amended to replace the term ‘transsexual’ with reference to sex and gender diverse people, and to sex and gender diversity, unless it is necessary to refer specifically to transgender people.

11. the sex of a child when it is notified (s5 BDMR Act; s4(1) BDMR Regulation) should be any of female, male, intersex, to be advised, or indeterminate.

12. the option ‘indeterminate’ should be used only in circumstances anticipated by s9(2)(b) BDMR Act when it is not possible to determine the sex of a premature still-born child; it should not be used to when a child is or could be intersex, in which case one of the other four categories should be used.

13. at the time that the sex of a child is notified as ‘intersex’ or ‘to be advised’, the parents and any health practitioners involved in caring for the child should be provided with printed information, advice and resources, developed in consultation with representatives of the intersex community and expert health practitioners, which explain intersex and set out considerations for decisions that can be made about the child’s sex and gender identity.

14. the current 60 days allowed for the registration of the sex of any child (ss9 and 11 BDMR Act; s5 BDMR Regulation) should be extended to 180 days.

15. to give legal recognition to intersex people, the available categories for the registration of a person’s sex should be any of female, male, intersex and indeterminate.

16. the Registrar-General should be empowered to issue a birth certificate which shows a person’s sex as ‘unspecified’, in circumstances where a person is in the process of changing their identity from one sex and gender to another (‘transitioning’), or does not identify as having a sex.

17. the requirement in the ACT for a person to undergo sexual reassignment surgery to change the record of their sex should be abolished.

18. the requirement for a person to register a change in their sex and gender identity should not be more onerous than it is in the policy of the Passport Office.

19. when an intersex person seeks a change to the record of the sex on register, whether to female, male or intersex, the person need only rely on medical confirmation of their intersex status.

20. the requirement for a person to register a change in their sex and gender identity is a matter of policy for the government to decide, from among suitable and available options which range from self-identification to self-identification accompanied by corroboration by various classes of people.

21. it is not appropriate at this stage to prohibit, more broadly than the Discrimination Act already does, requests for disclosure of gender identity without a demonstrated legitimate need.

22. in light of the practice of the Registrar-General to issue a change of name certificate which does not show the person’s sex or former name, no changes to current law and practice under the Births, Deaths and Marriages Registration Act need to be made to ensure protection of the privacy of a person who has changed their sex and gender identity.

23. the current restrictions – in the BDMR Regulation and Office of Regulatory Services Policy – on access to a record of a person’s sex in the register are adequate, but information provided by the Territory from its register to another State or Territory, and access to the register provided by the Territory to another State or Territory, should be subject to the same restrictions on access as are set out in the BDMR Regulation and Office of Regulatory Services Policy.

24. the BDMR Act s29 should accept an Australian passport or Document of Identity, in addition to an ‘interstate recognition certificate’, as evidence that the person mentioned is of the sex as stated in it. Further, reference in s29(3) to an ‘interstate recognition certificate’ should not be limited to a certificate ‘in relation to a person who has undergone sexual reassignment surgery’.

25. a Certificate of Particulars is a desirable mechanism to ensure equal access for ACT residents to reforms that are designed to guarantee legal recognition of sex and gender diverse people without reliance on inhumane eligibility requirements.

In the Discrimination Act 1991:

26. having regard to 1-3 above, where the Discrimination Act refers to the attribute of ‘gender identity’,
it should be amended to refer instead to sex and gender diversity.

27. protected attributes should include:

i. a person’s identifying as intersex, as a sex other than their registered sex, as having no sex, and as being in transition for one sex to another

ii. the record of a person’s sex having been altered under the BDMR Act or equivalent law or practice, and

iii. a person’s physical presentation (including physical features, manner of speech, and dress) when it is not consistent with the person’s recorded birth sex or with the conventional physical presentation of a person of a particular sex.

In the ACT public sector:

28. when an ACT public authority identifies and/or records a person’s sex:

i. the person is entitled to inspect the record, and to have their sex identified and/or recorded (and if necessary amended) in accordance with their sex as registered under the BDMR Act)

ii. no liability should attach to a person who, on behalf of an ACT public authority, incorrectly records a person’s sex in good faith.

29. if, as recommended, the available categories for the registration of a person’s sex under the BDMR Act are to be any of female, male, or intersex, then at least those three categories should be used in all ACT government activity.

30. when it is relevant for an ACT public authority to require a person to identify their sex – other than for notifying and registering a birth and for changing the birth record of their sex – the person should be asked their ‘sex and gender identity’, and should be given the option of identifying as any of:

a) female

b) male

c) intersex

d) none of the above.

31. the proposed changes to law and practice to give legal recognition to sex and gender diverse people will need to be accompanied by investment in public authorities for: i. programs of education and training about sex and gender diversity ii. the conversion of systems and documents to reflect the formal recognition of sex and
gender diversity iii. funding to ensure that the legislative changes are part of a broader program of social
inclusion.

In the ACT:

32. to monitor and report on progress towards legal recognition for sex and gender diverse people in the ACT, the ACT Human Rights Commission must be sufficiently resourced to address the underreporting of discrimination against transgender and intersex people, and to support employers and service providers with information about their legal obligations under the Discrimination Act 1991 and the Human Rights Act 2004.

33. to address issues of unemployment, discrimination, poor physical and mental health outcomes, and low rates of social inclusion and participation among sex and gender diverse people:

i. support and advisory services should be provided to sex and gender diverse people and their families

ii. recurrent education and training programs should be provided to service providers, employers, workplaces and educational institutions.

Nationally:

34. while the ACT is acting to remove legal obstacles for sex and gender diverse people across all its legislation, cooperation with the Commonwealth and with other State and Territory governments will be important in developing a national approach that addresses both the legal and social recognition difficulties faced by the gender diverse community.

35. it is desirable for the governments of the States, Territories and Commonwealth to audit their laws and practices for provisions which require a person to identify their sex and gender, and to review the need for those requirements with the intention of removing whenever possible a requirement that a person identify their sex and gender.

What's striking about the new Australian Institute of Criminology and Australian Crime Commission report [PDF] on Serious and Organised Investment Fraud - apart from the document's superficiality - is the small scale of that fraud relative to the depredations of corporate criminals such as Alan Bond.

The 40 page report is thin, very thin ... something that might be expected after reading previous ACC documents (eg noted here, here and here) that are distinguished by problematical analogies, woolly statistics, emotive language and a decided absence of legal analysis.

The authors explain that -

In 2011, Task Force Galilee was established to broaden the understanding of Serious and Organised Investment Fraud and to develop a national response. As at April 2012, the Task Force estimated that Australians’ losses to this type of fraud since January 2007 were in excess of A$113 million, with this figure likely to be conservative. During this period more than 2,600 Australians were victims of Serious and Organised Investment Fraud. These figures have largely been established as a result of intelligence analysis, and do not reflect the actual level of reporting by victims, which remains low.

This report has been prepared to provide an insight into the nature and extent of this type of fraud as it currently affects Australia. Since the Task Force’s establishment, knowledge and understanding of Serious and Organised Investment Fraud has grown exponentially, and continues to do so. The information in this report is a compilation of the key characteristics identified via available literature and relevant Task Force member findings. The research and assistance of the Australian Institute of Criminology (AIC) is also acknowledged.

This report uses the definition of Serious and Organised Investment Fraud which has been adopted by Task Force Galilee. This Task Force defines it as:

a) any unsolicited contact, by telephone or internet, of persons in Australia (potential investors) by persons (callers) usually located overseas, where such callers engage in conduct that is fraudulent, false, misleading or deceptive with the purpose of inducing potential investors to buy, sell, or retain securities or other investments and where such callers do not have the license or authority to engage in a securities business, or investment advice business in Australia; and
b) may include superannuation and investment fraud.

The report indicates that -

Serious and Organised Investment Fraud (or ‘boiler room frauds’ as they are referred to in some jurisdictions) use sophisticated techniques to solicit investment in non-existent or essentially worthless shares and other securities. The frauds are well organised and convincing, with constantly evolving modus operandi. They generally operate from an overseas location; however recent investigations have identified operations based in Australia. Combined, these factors contribute to their ability to evade detection. These characteristics also reflect those of frauds in general, and can be attributed to offenders adapting their methods once the investment is recognised as a fraud and/or is not generating the same return as it has in the past.
Serious and Organised Investment Fraud tactics are considered sophisticated, complex and very effective. They are difficult to identify - even for experienced investors - and are usually initiated by cold-calling potential victims using persuasive techniques that are fraudulent, misleading and deceptive for the purposes of inducing victims to purchase investments. Some Serious and Organised Investment Fraud operators have also been identified operating ‘recovery rooms.’ Once investors have realised they have invested in fraudulent or worthless shares a second arm of the operation ‘the recovery room’ makes contact with victims and attempts to convince them that for a ‘fee’ they can assist recovery of some of the investment. Recovery is, of course, futile. ...

The effort and time invested in the planning and conduct of Serious and Organised Investment fraud activities indicate it is principally a well-planned and organised criminal activity. In addition, offenders typically dedicate a great deal of effort to convince an investor of their legitimacy with some strategies in place prior to placing the cold call. This includes:

• circumvent the prevention messaging and on-line feedback that has previously alerted potential victims that they are being scammed, and

• issuing account statements to reassure investors that their investments are safe.

A 2012 Task Force Galilee assessment found that the average amount transferred by victims of Serious and Organised Investment Fraud was A$18,174 (with a range in value between A$9 and A$1,293,390). In 2002, ASIC found that the median (not average, but middle of the distribution of known fraudulent transfers) amount lost was A$17,000 (with a range in value between A$3,900 and A$500,000). Most of the monies sent to Serious and Organised Investment Fraud operations from the Australian victims surveyed by Task Force Galilee in 2011 were funded by their superannuation (n=20, 37%) and investment funds (n= 34; 63%). Analysis of serious and organised investment fraud in the United Kingdom showed most victims typically lost £20,000 each, with one loss totalling £1.2 million.

From a privacy and data protection perspective the most interesting comments are those relating to the scammers' identification of targets -

Financial lists are treated as a valuable commodity among those involved in Serious and Organised Investment Fraud activities. Cases have been identified where individual telemarketers (cold callers) have stolen market lead lists from their employers to initiate ‘rip and tear’ rooms (where the telemarketer/cold caller operates the scam on their own) or to sell to competing fraud operations.
Analysis of the modus operandi of Serious and Organised Investment Fraud operations and the literature has identified a range of techniques used by operators to identify and contact potential victims. ... These strategies include:

• Internal company telephone lists: these can be stolen from employers.

• Accessing the member lists of financial/credit ratings agencies.

• A ‘snowball’ scenario. In this situation a victim refers the fraudulent ‘opportunity’ onto family and friends, or the victim passes on their details to offenders. This scenario results in a pool of investors being generated through word of mouth. It is possibly for this reason that Serious and Organised Investment Fraud offenders frequently pay dividends to victims as a means to both feign legitimacy and encourage investors to share this opportunity with friends and family. This method of accessing potential victims highlights the need for individuals not to rely solely on the advice and recommendations of family and friends but to conduct their own checks of potential investment opportunities through authorised regulatory agencies.

• ‘Free lunch’ investment seminars

• Public lists. These include names and details extracted from public telephone directories and shareholder lists, trade journals, professional directories and newspapers.

• Buying lists from legitimate companies in the leads brokerage industry: ACC intelligence indicates that Serious and Organised Investment Fraud operators have also utilised the services of legitimate leads brokerage companies. An example of this is illustrated in Case Study 3.

• Buying lists from illegitimate leads brokers: Also known as ‘sucker lists,’ Serious and Organised Investment Fraud operations can purchase leads lists from other illicit operations and criminal leads list brokers. This includes selling victim bank account and credit card information, and contact details (phone number, addresses etc). It has also been observed that Serious and Organised Investment Fraud operators have utilised social networking sites to trade lists of victims as well as recruit accomplices.

The authors conclude that

Analysis of Australia’s response and the response by international agencies to Serious and Organised Investment Fraud indicate that this type of fraud is widely recognised, and reports of Serious and Organised Investment Fraud in Australia are increasing. This could be due to many factors including greater awareness
of the crime, improved reporting rates or a general increase in Serious and Organised Investment Fraud operations. As the report demonstrates, Serious and Organised Investment Fraud is not an opportunistic crime, but in fact is a calculated, sophisticated, organised criminal event. These factors also highlight why law enforcement agencies and regulatory agencies globally face difficulties with Serious and Organised Investment Fraud prevention, detection, disruption and prosecution.
As Serious and Organised Investment fraudsters are continually evolving their modus operandi, the responses to this crime need to be flexible and responsive. Therefore, it is unlikely that there is one strategy that is a panacea to the crime, particularly as Serious and Organised Investment Fraud involves many different elements. One of the main challenges in developing responses to Serious and Organised Investment Fraud is the overall lack of available, proven good practice examples in Serious and Organised Investment Fraud disruption.

Raising awareness and education campaigns has been a common strategy for Australian and international agencies to prevent Serious and Organised Investment Fraud. These campaigns are largely directed at potential victims, alerting them to this fraud type, characteristics of the fraud and explanation of what to do if a person suspects an investment fraud operation is active.

Information sharing and collaboration is also considered an essential part of responding to investment and Serious and Organised Investment fraud. This is a key characteristic of Australia’s response and is a central focus to Task Force Galilee’s prevention and intervention strategy development.

As a prevention measure, law enforcement and regulatory agencies both nationally and internationally highlight it is essential prior to investing to check numerous sources to ensure the legitimacy of the investment. Investors are also encouraged not to become complacent. Due diligence is required even if an investor has a financial advisor because they may also be unaware of the fraud. It has been suggested that investment and Serious and Organised Investment frauds (e.g. Bernie Madoff fraud) could have been prevented with ‘due diligence’ and verifying information by either investors or hedge fund managers.

08 July 2012

With announcement that the Cryonics Institute plans to open a 400-cadaver facility in Australia I have been grazing that organisation's site. It is a hoot, just like the cryonics magazine noted some time ago.

Apart from fervent advice about how to preserve the family pet when Fido or Spot 'deanimates' (the Cryonics people - just like spiritualists - are so very uncomfortable with the word 'death') before the guys with the freezer arrive to make petsicles there is a fun paragraph about DNA preservation -

If your cryopreservation and reanimation proceeds without any problems, a DNA sample should be of little use. If you want your remains preserved under any circumstances and you are killed under circumstances that makes your remains hard to identify, a DNA sample could be useful to verify that the remains to be cryopreserved are really yours. Or you may simply want someone to be able to identify your remains so that there is no ambiguity or question about your identity when you are buried or cremated. Or if your body or the body of a loved-one is lost completely and you like the idea of a clone someday being constructed, the DNA could help. You may even want to save the DNA of your pet for possible future cloning. In some far-future scenarios it will be possible to reconstruct people from artifacts, such as the memories of you that are found in other people who have been reanimated and the physical records of your life, with DNA augmenting the process - although this is extreme science-fiction.

Presumably the latter idea is a hit with devotees of quantum mysticism, homeopathy, astrology, 'matrix energetics', dowsing or 'psionic medicine', with their faith in water having a 'memory', coffee cups and rocks having a cosmic consciousness, ghosts (the dead, it seems, are still with us but "not in a familiar form", unsurprising if the cadaver's been cremated), reincarnation and similar mumbo-jumbo that has gained traction in parts of academia.

More fallout from the News of the World hacking scandal, with release by the UK House of Commons Home Affairs Committee of a report on private investigators.

The report considers the risks of private investigator involvement in the justice system and law enforcement, in particular the threat of corruption associated with that involvement (eg private investigators and police sharing the same bed).

The Committee concludes that "it is getting easier for anyone to advertise themselves as a private investigator - with modern communications and cheap surveillance devices - and while the industry remains unregulated, a number of serious risks remain". It recognises the honest contribution made by most private investigators but highlights the involvement of some private investigators in an illegal market in personal data and calls again on the Government to strength the penalties for data offences. The Committee Chair commented that

rogue private investigators are the brokers in a black market in information. They illegally snoop on our data, cash in on our private lives and only get away with a paltry fine.

The public must be assured that those acting as ‘private investigators’ are subject to stringent checks, act under a code of conduct, and will face tough penalties if they step out of line.

It is also time for the link between private investigators and our police forces to be broken. Officers must be compelled to declare any dealings with private investigators and be subject to a cooling off period before they can move from the police service to the private investigation industry.

It is time this industry was regulated, so that the honest majority can get on with their work. We expect the Government to act urgently.

Accordingly the report features a range of recommendations
-

the Government should set up a robust licensing and registration system as soon as possible.

private investigators and their companies should be governed by a new Code of Conduct for Private Investigators. Under this system a criminal record for breach of section 55 should disqualify individual from operating as private investigators.

dealings between police and investigators should be recorded and that there should be a one year cooling off period between serving as a police officer and entering the investigation industry

the Independent Police Complaints Commission should take direct control over investigations in cases alleging police corruption in relation to private investigators.

The report notes that

In January 2012, some 2,032 registered data controllers claimed they were operating a business as a private investigator, but industry groups have claimed that as many as 10,000 people are working in the field. No one knows precisely how many private investigators there are in the UK.

As many as 65% of private investigators are former police officers.

Currently, anyone can undertake private investigative activity regardless of skills, experience or criminality as there is no direct regulation of private investigations.

Fees charged by investigators are opaque and vary enormously, from a small day fee of £250 for small firms or sole operatives, to several thousands of pounds per day for senior investigators, or difficult tasks.

Sophisticated surveillance equipment is readily available for sale on the Internet, sometimes for less than £100.

It goes on to comment that -

We were very surprised that the Minister responsible for regulation of the private security industry had not even read the report of the Serious Organised Crime Agency on private investigators. The Government should set out a strategy for mitigating the risks posed by private investigators as soon as the Minister has read and reflected on the report.

In order to garner "premium" information that commands the highest prices, we heard troubling allegations that private investigators maintain close links with contacts in public service roles, such as the police forces. These links appear to go beyond one-off contacts and therefore to constitute an unacknowledged, but deep-rooted intertwining of a private and unregulated industry with our police forces. The Independent Police Complaints Commission should take a direct control over investigations in cases alleging police corruption.

Personal privacy would be better protected by closer working between the Information Commissioner, the Chief Surveillance Commissioner and the Interception of Communications Commissioner. We recommend that the Government aim, before the end of the next Parliament, to co-locate the three Commissioners in shared offices and introduce a statutory requirement for them to cooperate on cases where both the Data Protection Act and the Regulation of Investigatory Powers Act are relevant. In the longer term, consideration should be given to merging the three offices into a single Office of the Information and Privacy Commissioner.

Confiscation orders should be sought where a person is convicted of data and privacy offences and has sold the information for profit.

We recommend that the Home Secretary exercise her power under section 77 of the Criminal Justice and Immigration Act 2008 to strengthen the penalties available for offences relating to the unlawful obtaining, disclosure and selling of personal data under section 55 of the Data Protection Act. The current fine - typically around £100 - is derisory. It is simply not an effective deterrent. ...

"Private Investigator" should be a protected title - as in the case of "social worker"- so that nobody could use the term to describe themselves without being subject to regulation.

We recommend the introduction of a two-tier system of licensing of private investigators and private investigation companies and registration of others undertaking investigative work. Full licensing should apply to individuals operating or employed as full-time investigators and to private investigation companies. Registration should apply to in-house investigation work carried out by employees of companies which are already subject to regulation, such as solicitors and insurance companies. Both should be governed by a new Code of Conduct for Private Investigators, which would also apply to sub-contracted and part-time investigators. A criminal record for breach of section 55 should disqualify individuals from operating as private investigators.

Whereas licensing will impose an additional regulatory burden on the industry, it could also provide the new safeguards necessary to provide some potential benefits. We recommend that the Government analyse the risks and benefits of granting increased access to certain prescribed databases for licensed investigators, in order to facilitate the legitimate pursuit of investigation activities. For example, a licence may confer the right to access the on-line vehicle-keeper database in certain circumstances. It should consider how this would interact with the changes proposed to data protection laws by the European Commission. The United Kingdom has rightly moved to a situation of information management rather than merely looking at data protection. We also recognise that appropriate sharing of data can prevent crime and contribute significantly to other outcomes that are in the public interest. However, any new access should be carefully monitored.

We can look forward to the report of the Leveson inquiry, which will offer another dimension.

UK newspapers such as the Daily Mail and civil society groups such as Big Brother Watch are criticising plans by British Airways for an iPad-based “Know Me” initiative that will use Google Images searches to find photos of passengers so that staff can approach them as they arrive at plane or terminal. The initiative will include staff going beyond 'name and seat number' details; they will reportedly search customer complaint and other customer-specific information held by BA.

BA's Head of Customer Analysis is quoted as commenting that

We’re essentially trying to recreate the feeling of recognition you get in a favourite restaurant when you’re welcomed there, but in our case it will be delivered by thousands of staff to millions of customers. This is just the start — the system has a myriad of possibilities for the future.

Quite so, and not all benign. Is the next stage an integration with biometric data?

Another BA spokesman is reported as stating that

The most recent advancement of the system enables the British Airways team to search Google images for a photo of specific customers so they can recognise them and proactively approach them. The airline is aiming to send 4,500 personal recognition messages a day by the end of the year.

There is unfortunately no readily identifiable description of the initiative on the BA site.

Nick Pickles of Big Brother Watch aptly commented

Since when has buying a flight ticket meant giving your airline permission to start hunting for information about you on the internet?

If British Airways want more information about us they can ask us for it, rather than ignoring people’s privacy and storing data without us having any idea what data they are storing.

It's hard not to wonder whether BA's marketing and legal staff have simply slept through the latest wave of announcements about notions of consent in EU privacy law. Just because you can do it does not mean something's correct ... and an upbeat statement about the development of an airborne maître d' is unpersuasive.

BA is reported as responding that

We are entirely compliant with the UK Data Protection Act and would never breach that. Know Me is simply another tool to enable us to offer good customer service, similar to the recognition that high street loyalty scheme members expect.

The Google Images search app helps our customer service team to recognise high profile travellers such as captains of industry who would be using our First Class facilities enabling us to give a more personalised service.

So far there appears to have been no statement from the UK Information Commissioner.

A decision in the US highlights questions about evidence, copyright and privacy in relation to Twitter.

The case is People of the State of New York v. Harris, 11-80152, New York Criminal Court (Manhattan).

Judge Matthew A. Sciarrino Jr of the Criminal Court of the City of New York (ie state rather than federal jurisdiction) has ordered that three months of tweets by Occupy Wall Street protestor Malcolm Harris (with the hashtag destructuremal, somewhat less exciting that fleurs du mal) be provided to Manhattan prosecutors. Twitter was also requested to identify any IP addresses associated with the tweets and the email address on Harris’ profile.

Harris had opposed a subpoena seeking access to his tweets in relation to charges of disorderly conduct after arrests on the Brooklyn Bridge. Sciarrino rejected the argument that access would violate Harris' rights to privacy. The Court held that Harris had wanted the whole world to see his tweets, irrespective of subsequent efforts to delete them. Access to private communications - such as a one to one SMS - was different and would require the traditional search warrant.

There can be no reasonable expectation of privacy in a tweet sent around the world. If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweet, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist

In April Sciarrino held that Harris lacked the standing to oppose the subpoena because under Twitter’s terms & conditions he had granted the company the “worldwide, nonexclusive, royalty-free” right to distribute his messages, which were all publicly available. In the latest decision the Court rejected Twitter's attempt to quash the subpoena [PDF].

Sciarrino commented that

The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

He went on to note that Harris should have known that online services can retrieve deleted tweets -

Even when a user deletes his or her tweets there are search engines available such as "Untweetable," "Tweleted" and "Politwoops" that hold users accountable for everything they had publicly tweeted and later deleted.

Harris acknowledged that his Twitter account was public and that he wanted his tweets to be widely read but indicated that he was fighting the disclosure on principle.

Twitter responded that -

We are disappointed in the judge's decision and are considering our options. Twitter's Terms of Service have long made it absolutely clear that its users ‘own’ their content. We continue to have a steadfast commitment to our users and their rights.

They would say that, wouldn't they. The no doubt heartfelt commitment is somewhat at odds with announcement by the Library of Congress in 2010 that it had an agreement with Twitter to archive all tweets on that service -

How Tweet It Is!: Library Acquires Entire Twitter Archive

Have you ever sent out a “tweet” on the popular Twitter social media service? Congratulations: Your 140 characters or less will now be housed in the Library of Congress. That’s right. Every public tweet, ever, since Twitter’s inception in March 2006, will be archived digitally at the Library of Congress. That’s a LOT of tweets, by the way: Twitter processes more than 50 million tweets every day, with the total numbering in the billions.

The use of 'own' in the Twitter statement becomes meaningful.

We will see some some interesting debates about responsibility for the preservation of information on social network services and Twitter once litigation is underway or is imminent.

'Copyright and Innovation: The Untold Story' (forthcoming in Wisconsin Law Review) by Michael Carrier modestly explains that

Copyright has an innovation problem. Judicial decisions, private enforcement, and public dialogue ignore innovation and overemphasize the harms of copyright infringement. Just to pick one example, “piracy,” “theft,” and “rogue websites” were the focus of debate in connection with the PROTECT IP Act (PIPA) and Stop Online Piracy Act (SOPA). But such a debate ignores the effect of copyright law and enforcement on innovation. Even though innovation is the most important factor in economic growth, it is difficult to observe, especially in comparison to copyright infringement.

This article addresses this problem. It presents the results of a groundbreaking study of 31 CEOs, company founders, and vice-presidents from technology companies, the recording industry, and venture capital firms. Based on in-depth interviews, the article offers original insights on the relationship between copyright law and innovation. It also analyzes the behavior of the record labels when confronted with the digital music revolution. And it traces innovators’ and investors’ reactions to the district court’s injunction in the case involving peer-to-peer (p2p) service Napster.

The Napster ruling presents an ideal setting for a natural experiment. As the first decision to enjoin a p2p service, it presents a crucial data point from which we can trace effects on innovation and investment. This article concludes that the Napster decision reduced innovation and that it led to a venture capital “wasteland.” The article also explains why the record labels reacted so sluggishly to the distribution of digital music. It points to retailers, lawyers, bonuses, and (consistent with the “Innovator’s Dilemma”) an emphasis on the short term and preservation of existing business models.

The article also steps back to look at copyright litigation more generally. It demonstrates the debilitating effects of lawsuits and statutory damages. It gives numerous examples, in the innovators’ own words, of the effects of personal liability. It traces the possibilities of what we have lost from the Napster decision and from copyright litigation generally. And it points to losses to innovation, venture capital, markets, licensing, and the “magic” of music.

The story of innovation in digital music is a fascinating one that has been ignored for too long. This article aims to fill this gap, ensuring that innovation plays a role in today’s copyright debates.

Copyright & Liability

Statements in this blog are my own, rather than that of the University of Canberra.

The text and images are protected under Australian and international copyright and trade mark law. The blog does not represent legal advice. It is for informational purposes only; publication does not create an attorney-client relationship and nothing on this blog constitutes a solicitation for business.

The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.